Gesinger v. Burwell

RUTHER A. GESINGER, Plaintiff,v.HONORABLE SYLVIA MATHEWS BURWELL, SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES, IN HER OFFICIAL CAPACITY; Defendant.

OPINION AND ORDER ON DEFENDANT'S MOTION TO
DISMISS AND MOTION FOR SUMMARY JUDGMENT

CHARLES B. KORNMANN, United States District Judge

BACKGROUND

Plaintiff,
Ruth Gesinger, began working as a registered nurse for the
Indian Health Service ("IHS") on February 10, 2010,
in Eagle Butte, South Dakota. In July of 2010, plaintiff
experienced panic attacks and suffered a mental breakdown.
Management at IHS noticed plaintiff was in a depressive mood
and advised her to seek treatment. Plaintiff was later
treated at an inpatient unit within IHS. Thereafter,
plaintiff was referred to Manlove Psychiatric Clinic in Rapid
City, South Dakota, where she was diagnosed with Bipolar Type
2 Disorder, depression, and anxiety. On April 1, 2011,
plaintiff was fired. Plaintiff filed a complaint with the
Equal Employment Opportunity Commission, ("EEOC")
claiming she was disabled and was fired as a result of her
disability.

On
September 21, 2012, an administrative law judge for the EEOC,
Judge Hamilton, determined plaintiff had established
disability discrimination in violation of the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq. Judge
Hamilton ordered the Department of Health and Human Services
("Agency") to offer plaintiff reinstatement at IHS,
or to some other mutually agreeable position or location,
within 30 days. The order further directed defendant to give
plaintiff a minimum of 30 days from receipt of the offer
within which to accept or decline the offer. Defendant was
given 60 days to determine and provide plaintiff back pay and
benefits, including health insurance. Plaintiff was awarded
$10, 000.00 in punitive damages.

On
October 31, 2012, ten days past defendant's deadline,
plaintiff received a letter from defendant, informing it
would comply with the terms of Judge Hamilton's order.
Plaintiff accepted the Agency's offer within 30 days.
Plaintiff was given notice on January 11, 2013, to return to
work at IHS on January 14, 2013. Plaintiff started working at
IHS as a registered nurse for the Emergency Department on
January 14, 2013. On May 15, 2013, plaintiff asserted she was
subjected to a hostile work environment and was
constructively discharged. PL's Compl., at ¶ 33.
Plaintiff claims defendant intentionally discriminated and
retaliated against her by:

(6) Failing to provide plaintiff with reasonable
accommodations for her disability;

(7) Discrimination and retaliation for engaging in a
protected activity; and

(8) Intentionally creating a hostile work environment.

Id. at ¶ 21.

On July
15, 2013, Pauline Bruce, the Director of Diversity Management
for Indian Health Services, provided a declaration regarding
the status of the Agency's implementation of Judge
Hamilton's order. Bruce declared that she had reviewed
all the elements of the ALJ's decision and the Final
Agency Decision, and found that each element had been fully
implemented. Plaintiff filed a second administrative
complaint with the EEOC on October 1, 2013, claiming she was
discriminated and retaliated against based on her disability
and prior EEOC activity.

On
February 26, 2014, plaintiff attempted to bring a claim to
this Court alleging the Agency violated her rights under the
Americans with Disabilities Act ("ADA"). This Court
ruled that plaintiff had specifically pleaded claims under
the ADA, not the Rehabilitation Act, and, therefore, lacked
subject matter jurisdiction. Gesinger v. Sebelius,
Civ. No. 13-1004, Doc. 16, p. 4. This Court also found that
plaintiff had failed to exhaust her administrative remedies
to her claim of discrimination and retaliation in violation
of the Rehabilitation Act. Id.

On
March 19, 2014, the Agency issued its Final Administrative
Decision on plaintiffs second administrative complaint,
dismissing it on procedural grounds because she was
simultaneously proceeding with the matter in district court.
Plaintiff appealed the decision to the EEOC Office of Federal
Operations and, on June 4, 2014, the Agency reversed its
position and accepted plaintiffs second administrative
complaint. On February 12, 2015, the Agency issued its Final
Administrative Decision on plaintiffs second administrative
complaint. The Agency found that plaintiff had not been
discriminated or retaliated against based on her disability
or protected activity.

Plaintiff
filed a complaint with this Court on March 16, 2015,
asserting the Agency discriminated against her under the ADA
and retaliated and discriminated against her under the
Rehabilitation Act. Defendant has filed a partial motion to
dismiss and a motion in support of summary judgment.

Defendant
asserts the Court lacks subject matter jurisdiction to hear a
claim of discrimination under the ADA. Defendant has moved to
dismiss pursuant to Fed.R.Civ.P. 12(h)(3) and under
Fed.R.Civ.P. 12(b)(6). Fed.R.Civ.P. 12(h)(3) states: "If
the court determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action."
Fed.R.Civ.P. 12(h)(3). A Rule 12(h)(3) motion to dismiss is
evaluated under the same standards as a motion to dismiss
pursuant to Rule 12(b)(1). Berkshire Fashions, Inc. v.
M.V. Hakusan II, 954 F.2d 874, 879 n.3 (3rd Cir. 1992).
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of the complaint. "To avoid dismissal,
a complaint must allege facts sufficient to state a claim as
a matter of law and not merely legal conclusions."
Young v. City of St. Charles, Mo., 244 F.3d 623, 627
(8th Cir. 2001) (citation omitted). Dismissal of a claim
under Rule 12(b)(6) is appropriate only where "it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). "The burden of establishing that a cause of
action lies within the jurisdiction of the federal courts is
on the party asserting jurisdiction." Arkansas Blue
Cross and Blue Shield v. Little Rock Cardiology Clinic,
P.A., 551 F.3d 812, 816 (8th Cir. 2009). In this case,
plaintiff has the burden of establishing that subject matter
jurisdiction exists. It is not the responsibility of
defendant to prove otherwise. Titus v. Sullivan, 4
F.3d 590, 593 n.1 (8th Cir. 1993).

The
Court will address defendant's motion to dismiss under
Fed.R.Civ.P. 12(h)(3) first because "if it must dismiss
the complaint for lack of subject matter jurisdiction, the
accompanying defenses and objections become moot and do not
need to be determined." 5 C. Wright and A. Miller,
Federal Practice and Procedure, § 1350, p. 548
(1969). cf. Bell v. Hood,327 U.S. 678, 682, 66
S.Ct. 773, 776, 90 L.Ed. 939 (1946) (motion to dismiss for
failure to state a claim may be decided only after finding
subject matter jurisdiction).

The
United States and its agents have not waived sovereign
immunity to bring a discrimination claim under the ADA.
"Sovereign immunity is jurisdictional in nature."
FDIC v. Meyer, 510 U.S. 471, 475, (1994). To sue the
United States or an agency of the United States, plaintiff
must "show both waiver of sovereign immunity and a grant
of subject matter jurisdiction." VS Ltd. Partnership
v. Department of Housing and Urban Development, 235 F.3d
1109, 1112 (8th Cir. 2000). Plaintiff failed to address this
issue in her memorandum. The provision of the ADA providing
definitions for terms explains: "The term
'employer' does not include the United States, a
corporation wholly owned by the government of the United
States, or an Indian tribe." 42 U.S.C.A. § 12111
(West). Plaintiff, in her complaint, acknowledges that the
"defendant is a federal agency ..." PL's
Compl., ¶ 7. Therefore, this Court lacks subject matter
jurisdiction to adjudicate plaintiffs claim of discrimination
in violation of the ADA.

2.
Exhaustion of Administrative Remedies

Defendant
has filed a motion to dismiss all claims which stem from the
period before plaintiff was reinstated on January 14, 2013,
because plaintiff has failed to exhaust her administrative
remedies. Defendant argues plaintiff could have appealed to
the Merit Systems Protection Board ("MSPB") for a
determination as to whether the Agency has complied with the
terms of Judge Hamilton's order. Plaintiff argues she has
exhausted her administrative remedies because the Agency
issued its Final Agency Decision, which expressly
acknowledges her right to file a civil action in federal
district court.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Plaintiff
has exhausted her administrative remedies in regard to her
claims of discrimination and retaliation under the
Rehabilitation Act. "Administrative remedies must be
exhausted before a federal employee may bring an employment
discrimination claim against a federal employer."
McAlister v. Secretary of Dept. Health and Human
Services, 900 F.2d 157, 158 (8th Cir. 1990) (citing
Morgan v. United States Postal Service, 798 F.2d 1162
(8th Cir.1986)). Plaintiff, in her second administrative
complaint, asserted a discrimination and retaliation
violation under the Rehabilitation Act. On February 12, 2015,
the Agency issued its Final Agency Decision in response to
plaintiffs ...

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